People v. Mejia

• Decision Date: 22 April 1976
• Docket Number: C,Cr. 8081
• Citation: 129 Cal.Rptr. 192,57 Cal.App.3d 574
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Alfred David MEJIA, Defendant and Respondent. Alfred David MEJIA, Petitioner, v. SUPERIOR COURT of SAN DIEGO COUNTY, Respondent; The PEOPLE of the State of California, Real Party in Interest. iv. 14473.

Page 192

129 Cal.Rptr. 192

57 Cal.App.3d 574

The PEOPLE of the State of California, Plaintiff and Appellant, v. Alfred David MEJIA, Defendant and Respondent.

Alfred David MEJIA, Petitioner, v. SUPERIOR COURT of SAN DIEGO COUNTY, Respondent;

The PEOPLE of the State of California, Real Party in Interest.

Cr. 8081, Civ. 14473.

Court of Appeal, Fourth District, Division 1, California.

April 22, 1976.

Edwin L. Miller, Jr., Dist. Atty., Terry J. Knoepp and Ralph J. Fear, Deputy Dist. Attys., San Diego, for plaintiff and appellant, respondent, and real party in interest.

Defendants, Inc., under appointment by the Court of Appeal, by [57 Cal.App.3d 577] Philip M. Cohen, San Diego, for petitioner, defendant and respondent.

OPINION

AULT, Associate Justice.

The People appeal from a dismissal pursuant to Penal Code section 1385 granted when they could not comply with the court's order to produce two material witnesses for trial. The witnesses had been deported to Mexico by the United States Immigration Service following their release from state custody.

Also pending before this court is the petition of defendant Mejia for a writ of mandate to review the court's earlier order denying his motion to compel disclosure of an informant (4 Civ. No. 14473). Consideration of the petition was deferred pending resolution of the appeal, but at the suggestion of this court both parties have discussed the merits of the writ proceeding in their briefs on appeal. We have ordered the two proceedings consolidated.

On their appeal the People contend the court erred in granting defendant's motion to dismiss because the unavailable witnesses were not material witnesses, their unavailability was not the result of any prosecutorial act or omission, and their absence did not deprive Mejia of a fair trial.

The motion to produce material witnesses or dismiss was submitted to the court on the transcript of the preliminary hearing, various stipulations and offers of proof, and the testimony of two investigators called at the hearing. From this evidence, the following facts appear.

A day or two before August 12, 1975 Deputy Sheriff Simmons, while assigned to the narcotics task force, was told by a reliable, confidential informant that 'a David Mejia, living at 835 Iona Drive in San Diego, had in his possession over 100 kilos of marijuana which were in the bedroom of this residence.' The informant also said the contraband belonged to Alfred David Mejia, that he had seen Mejia in the house on either August 11 or August 12, and that Mejia's wife had told him she and Mejia were in possession of marijuana and were selling it. Simmons checked official records and learned Mejia had previously been convicted of a narcotics offense and that he had waived his Fourth Amendment rights as a condition of probation.

On August 12 Simmons and other officers went to the Iona Drive address. Shortly after Mejia had been observed standing in the front yard, Simmons knocked at the door and Mejia answered. Simmons identified himself and informed Mejia he had information there was a large amount of marijuana in the house, that Mejia had waived his Fourth Amendment rights, and that a search was to be conducted. When Simmons asked if he could come inside, Mejia replied, 'Yeah, I guess so.' Simmons then entered and found seven adults and two children in the living room. Agent Fisher searched the house, found 130 kilos of marijuana in a bedroom closet, and then placed everyone in the living room under arrest for possession of marijuana. The seven arrestees were: defendant Alfred David Mejia and his wife Jean, three residents of San Diego (George Leon, Grace Contreras and Henry Villegas) and two illegal aliens (Elias Velasquez-Velasquez and Alberto Payan Arce). At this time, the arresting officer quoted Mejia as volunteering: 'It's mine, all mine. No one else knows anything about it.'

After the arrests were made, about $2,000 in United States currency was found in Mejia's hand and about $2,000 more was found on the couch. ¹ Further search of the house uncovered a letter addressed to Mejia's wife at the Iona Drive address and a medical card belonging to his young son David but nothing bearing the name of defendant Alfred David Mejia. Mejia and wife were arraigned on August 14 and their preliminary hearing was set for August 28. Both were held to answer in the superior court.

On October 2 Mejia and his wife were jointly charged in an information with possessing marijuana for sale in violation of Health and Safety Code section 11359.

The five other adults arrested with the Mejias were not prosecuted. The three local residents had been released without charges being filed, and the two Mexican nationals, Velasquez and Arce, had been turned over to the United States Immigration Service for deportation almost immediately after their arrests.

In November 1974 Mejia and his wife moved to compel disclosure of the informant. The motion was granted as to Mrs. Mejia but denied as to Mejia because the court concluded the informant could only incriminate him. The People then dismissed the charge against Mrs. Jean Mejia rather than disclose the informant's identity.

In January 1975 Mejia moved to compel the People to produce Velasquez and Arce as material witnesses or, in the alternative, to dismiss the case. From the testimony of investigators for the defense and for the immigration service, it appeared that Velasquez and Arce had been deported to Mexico within a few days after Mejia's arrest and long before his preliminary hearing. The People offered to provide defendant with the witnesses' addresses in Sonora, Mexico, and argues this fulfilled their duty to the defendant. From the testimony and accompanying stipulations, it became clear the People had dropped the charges against the two Mexican nationals, thus making them available for deportation. The People had released them to the federal authorities for their deportation on August 15 and August 19 without attempting to subpoena them, without notifying the defendant, and without making any arrangement with the federal authorities for their detention pending trial or for their later readmittance for trial. The prosecution had also learned that Velasquez had been convicted in Tijuana for trafficking in marijuana. It was also established that the defendant's investigator was not given an opportunity to see the police report until August 22, several days after the witnesses had been deported. Also before the court was the transcript of the preliminary hearing at which there was testimony that Mejia was separated from his wife, lived on B Street with his mother, and went to the Iona Drive address only to visit his son.

DISCUSSION

A defendant in a criminal action is not entitled to a dismissal merely because he is unable to produce witnesses assertedly necessary to his defense. (People v. Kirkpatrick, 7 Cal.3d 480, 486, 102 Cal.Rptr 744, 498 P.2d 992). If, however, state action has made a material witness unavailable, dismissal is mandated by due process and a defendant's constitutional right to a fair trial. The principles involved were recently summarized by the Supreme Court in Bellizzi v. Superior Court, 12 Cal.3d 33, beginning at page 36, 115 Cal.Rptr. 52, at page 54, 524 P.2d 148, at page 150:

'The fundamental due process principle . . . is that the prosecution may not deprive an accused of the Opportunity to present material evidence which might prove his innocence. Even if the prosecution's motives are 'praiseworthy,' they cannot prevail when they 'inevitably result, intentionally or unintentionally, in depriving the defendant of a fair trial.' (citing People v. Kiihoa, 53 Cal.2d 748, 3 Cal.Rptr. 1, 349 P.2d 673).'

Generally speaking the People may select and choose which witnesses they wish to use to prove their case against a defendant. They are not, however, under principles of basic fairness, privileged to control the proceedings by choosing which material witnesses shall, and which shall not, be available to the accused in presenting his defense. (United States v. Mendez-Rodriguez, 9 Cir., 450 F.2d 1, 4--5; United States v. Tsutagawa, 9 Cir.,500 F.2d 420, 423.)

While the People concede Velasquez and Arce were deported to Mexico and are unavailable as witnesses, they contend dismissal of the case was not warranted because there was no showing the two aliens were material witnesses or that their absence was the result of state action.

There is no merit in the People's claim that Velasquez and Arce were not shown to be material witnesses. When a defendant asserts that state action has made a material witness unavailable, the requirement of materiality is the same as when he seeks the disclosure of an unidentified informer. It is the Material character of the witness, not of the testimony, which must be demonstrated. Any specific showing of the testimony is made impossible by the unavailability of the witness. (United States v. Mendez-Rodriguez, supra, 9 Cir., 450 F.2d 1, 5). When the evidence discloses the person unavailable either participated in the crime charged, or was a nonparticipating eyewitness to the offense, in a position to perceive what took place from a sufficiently proximate vantage point, such person is a material witness, and the defendant has demonstrated a reasonable possibility he could, if available, give evidence which would exonerate him (Williams v. Superior Court, 38 Cal.App.3d 412, 423--424, 112 Cal.Rptr. 485).

The evidence at the hearing in the superior court showed that Velasquez and Arce were in the Iona Drive house before the police arrived, were present when the police entered, were present when the marijuana was found, and were present when Mejia was arrested. They either participated in, or were nonparticipating eyewitnesses to, the crime charged. Presumably they saw what occurred and heard what was said. They were arrested for possessing the same marijuana which is the...